Mrs. Capito (for herself, Ms. Cortez Masto, Mr. Sullivan, Mr. Brown, and Mr. Nelson) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

June 27, 2018

Reported by Mr. Thune, with an amendment

Strike out all after the enacting clause and insert the part printed in italic

A BILL

To prohibit the marketing of bogus opioid treatment programs or products.

1.

Short title

This Act may be cited as the Opioid Addiction Recovery Fraud Prevention Act of 2018.

2.

Definitions

In this Act:

(1)

Opioid treatment product

The term opioid treatment product means a product, including any supplement or medication, for use or marketed for use in the treatment, cure, or prevention of an opioid use disorder.

(2)

Opioid treatment program

The term opioid treatment program means a program that provides treatment for people diagnosed with, having, or purporting to have an opioid use disorder.

(3)

Opioid treatment disorder

The term opioid use disorder means a cluster of cognitive, behavioral, or physiological symptoms in which the individual continues use of opioids despite significant opioid-induced problems, such as adverse health effects.

3.

False or misleading representations with respect to opioid treatment programs and products

(a)

Unlawful activity

It is unlawful to make any deceptive representation with respect to the cost, price, efficacy, performance, benefit, risk, or safety of any opioid treatment program or opioid treatment product.

(b)

Enforcement by the Federal Trade Commission

(1)

Unfair or deceptive acts or practices

A violation of subsection (a) shall be treated as a violation of a rule under section 18 of the Federal Trade Commission Act (15 U.S.C. 57a) regarding unfair or deceptive acts or practices.

(2)

Powers of the Federal Trade Commission

(A)

In general

The Federal Trade Commission shall enforce this section in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this section.

(B)

Privileges and immunities

Any person who violates subsection (a) shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated and made part of this section.

(C)

Authority preserved

Nothing in this section shall be construed to limit the authority of the Federal Trade Commission under any other provision of law.

(c)

Enforcement by States

(1)

In general

Except as provided in paragraph (4), in any case in which the attorney general of a State has reason to believe that an interest of the residents of the State has been or is threatened or adversely affected by any person who violates subsection (a), the attorney general of the State, as parens patriae, may bring a civil action on behalf of the residents of the State in an appropriate district court of the United States to obtain appropriate relief.

(2)

Rights of Federal Trade Commission

(A)

Notice to Federal Trade Commission

(i)

In general

Except as provided in clause (iii), the attorney general of a State shall notify the Federal Trade Commission in writing that the attorney general intends to bring a civil action under paragraph (1) before initiating the civil action.

(ii)

Contents

The notification required by clause (i) with respect to a civil action shall include a copy of the complaint to be filed to initiate the civil action.

(iii)

Exception

If it is not feasible for the attorney general of a State to provide the notification required by clause (i) before initiating a civil action under paragraph (1), the attorney general shall notify the Federal Trade Commission immediately upon instituting the civil action.

(B)

Intervention by Federal Trade Commission

The Federal Trade Commission may—

(i)

intervene in any civil action brought by the attorney general of a State under paragraph (1); and

(ii)

upon intervening—

(I)

be heard on all matters arising in the civil action; and

(II)

file petitions for appeal.

(3)

Investigatory powers

Nothing in this subsection shall be construed to prevent the attorney general of a State from exercising the powers conferred on the attorney general by the laws of the State to conduct investigations, to administer oaths or affirmations, or to compel the attendance of witnesses or the production of documentary or other evidence.

(4)

Preemptive action by Federal Trade Commission

If the Federal Trade Commission or the Attorney General on behalf of the Commission institutes a civil action, or the Federal Trade Commission institutes an administrative action, with respect to a violation of subsection (a), the attorney general of a State may not, during the pendency of that action, bring a civil action under paragraph (1) against any defendant or respondent named in the complaint of the Commission for the violation with respect to which the Commission instituted such action.

(5)

Venue; service of process

(A)

Venue

Any action brought under paragraph (1) may be brought in any district court of the United States that meets applicable requirements relating to venue under section 1391 of title 28, United States Code.

(B)

Service of process

In an action brought under paragraph (1), process may be served in any district in which the defendant—

(i)

is an inhabitant; or

(ii)

may be found.

(6)

Actions by other State officials

In addition to civil actions brought by attorneys general under paragraph (1), any other consumer protection officer of a State who is authorized by the State to do so may bring a civil action under paragraph (1), subject to the same requirements and limitations that apply under this subsection to civil actions brought by attorneys general.

1.

Short title

This Act may be cited as the Opioid Addiction Recovery Fraud Prevention Act of 2018.

2.

Definitions

In this Act:

(1)

Opioid treatment product

The term opioid treatment product means a product, including any supplement or medication, for use or marketed for use in the treatment, cure, or prevention of an opioid use disorder.

(2)

Opioid treatment program

The term opioid treatment program means a program that provides treatment for people diagnosed with, having, or purporting to have an opioid use disorder.

(3)

Opioid use disorder

The term opioid use disorder means a cluster of cognitive, behavioral, or physiological symptoms in which the individual continues use of opioids despite significant opioid-induced problems, such as adverse health effects.

3.

False or misleading representations with respect to opioid treatment programs and products

(a)

Unlawful activity

It is unlawful to make any deceptive representation with respect to the cost, price, efficacy, performance, benefit, risk, or safety of any opioid treatment program or opioid treatment product.

(b)

Enforcement by the Federal Trade Commission

(1)

Unfair or deceptive acts or practices

A violation of subsection (a) shall be treated as a violation of a rule under section 18 of the Federal Trade Commission Act (15 U.S.C. 57a) regarding unfair or deceptive acts or practices.

(2)

Powers of the Federal Trade Commission

(A)

In general

The Federal Trade Commission shall enforce this section in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this section.

(B)

Privileges and immunities

Any person who violates subsection (a) shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated and made part of this section.

(C)

Authority preserved

Nothing in this section shall be construed to limit the authority of the Federal Trade Commission under any other provision of law.

(c)

Enforcement by States

(1)

In general

Except as provided in paragraph (4), in any case in which the attorney general of a State has reason to believe that an interest of the residents of the State has been or is threatened or adversely affected by any person who violates subsection (a), the attorney general of the State, as parens patriae, may bring a civil action on behalf of the residents of the State in an appropriate district court of the United States to obtain appropriate relief.

(2)

Rights of Federal Trade Commission

(A)

Notice to Federal Trade Commission

(i)

In general

Except as provided in clause (iii), the attorney general of a State shall notify the Federal Trade Commission in writing that the attorney general intends to bring a civil action under paragraph (1) before initiating the civil action.

(ii)

Contents

The notification required by clause (i) with respect to a civil action shall include a copy of the complaint to be filed to initiate the civil action.

(iii)

Exception

If it is not feasible for the attorney general of a State to provide the notification required by clause (i) before initiating a civil action under paragraph (1), the attorney general shall notify the Federal Trade Commission immediately upon instituting the civil action.

(B)

Intervention by Federal Trade Commission

The Federal Trade Commission may—

(i)

intervene in any civil action brought by the attorney general of a State under paragraph (1); and

(ii)

upon intervening—

(I)

be heard on all matters arising in the civil action; and

(II)

file petitions for appeal.

(3)

Investigatory powers

Nothing in this subsection shall be construed to prevent the attorney general of a State from exercising the powers conferred on the attorney general by the laws of the State to conduct investigations, to administer oaths or affirmations, or to compel the attendance of witnesses or the production of documentary or other evidence.

(4)

Preemptive action by Federal Trade Commission

If the Federal Trade Commission or the Attorney General on behalf of the Commission institutes a civil action, or the Federal Trade Commission institutes an administrative action, with respect to a violation of subsection (a), the attorney general of a State may not, during the pendency of that action, bring a civil action under paragraph (1) against any defendant or respondent named in the complaint of the Commission for the violation with respect to which the Commission instituted such action.

(5)

Venue; service of process

(A)

Venue

Any action brought under paragraph (1) may be brought in any district court of the United States that meets applicable requirements relating to venue under section 1391 of title 28, United States Code.

(B)

Service of process

In an action brought under paragraph (1), process may be served in any district in which the defendant—

(i)

is an inhabitant; or

(ii)

may be found.

(6)

Actions by other State officials

In addition to civil actions brought by attorneys general under paragraph (1), any other consumer protection officer of a State who is authorized by the State to do so may bring a civil action under paragraph (1), subject to the same requirements and limitations that apply under this subsection to civil actions brought by attorneys general.

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